Berry v. Smith
| Decision Date | 07 September 1894 |
| Citation | 35 P. 576,1894 OK 9,2 Okla. 345 |
| Court | Oklahoma Supreme Court |
| Parties | THOMAS E. BERRY, et al. v. GEORGE SMITH, Sheriff |
¶0 1. INSTRUCTION--Exception--Unless an exception is saved to the giving of an instruction, as provided by § 19, p. 842, Statutes of 1890, it is not error for the court to overrule a motion for a new trial, and to set aside the verdict of the jury, assigning the giving of such instruction as erroneous, notwithstanding the law may be incorrectly stated in such instruction.
2. MOTION FOR A NEW TRIAL-- Affidavits--An affidavit in support of a motion to set aside verdict of the jury and for a new trial, alleging disqualification of a juror, by reason of an alleged expression of opinion as to the merits of the case before the trial, is insufficient if it fail to show that the rights of the aggrieved party have been prejudiced, and such party did not have full knowledge of such facts when the jury was empaneled, and full opportunity given to challenge the juror for cause or peremptorily, and this especially in the absence of said juror's voir dire.
3. SAME--Affidavits found in the records will not be considered in support of an assignment of error in a motion for a new trial and to set aside the verdict of the jury, unless such affidavits are in some manner attached to such motion as an exhibit, or designated in the case made or bill of exceptions as having been used in support of the motion.
4. INSTRUCTION--Evidence Not a Part of Record--When a question of fact is submitted to a jury and the evidence is not made a part of the record on appeal, the question of error in giving instructions to the jury as to such facts will not be considered unless such instructions are clearly inapplicable to any state of facts, and exception thereto has been properly saved.
5. PLEADINGS--Evidence--When an appellant assigns as error that the court permitted evidence to go to the jury whether the sale and purchase of property involved was made to defraud creditors, for the reason that no such issue was made by the pleadings, the question will not be considered unless it appears that exception was taken thereto in due form, and such evidence introduced on the trial, made a part of the record, that the appellate court may determine whether the evidence was inadmissible under the pleadings.
Error from District Court of Cleveland County.
On the 2lst day of November, 1891, Thomas E. Berry and A. A. Berry, partners, doing business, as Berry Bros., in the town of Norman, filed their complaint in replevin in the probate court of Cleveland county, to recover possession of a stock of confectionery, taken by George Smith, as sheriff of said county, under and by authority of a writ of attachment, sued out of the probate court by plaintiff, in the case of W. A. Mounts & Co., vs. W. H. Fergerson, an insolvent debtor. From the probate court the case was appealed to the district court and judgment rendered for the defendant, for the return of the property, or its value in case the return thereof could not be had.
From this judgment the plaintiffs appeal. Judgment of the court below affirmed.
Berry & Hess and Amos Green & Son for appellants.
Leslie P. Ross and Herod & Widmer for appellee.
The opinion of the court was delivered by
¶1 This action was first commenced in the probate court of Cleveland county, and in course of litigation appealed to the district court, and tried de novo, judgment was rendered upon such verdict, which verdict reads as follows:
"We, the jury, duly empaneled and sworn to try the above case, do, upon our oaths, find for the defendant, and find the value of the property sued to be $ 150."
¶2 The record being so incomplete and imperfect, it is difficult for the court to determine to what extent consideration should be given to any of the points raised. After the verdict. the court below next seems to have entertained a motion to set aside the verdict and for a new trial. No date of the filing of the motion is disclosed, but in rendering judgment, the court overruled it and an exception appears to have been saved in regular form. No other exceptions were taken, either to the instructions of the court, or any question during the progress of the trial. The motion is based upon nine alleged errors, the principal one affecting the present status of this case being instruction No. 9, which reads:
"If you find for the defendant, you will also find the value of the property taken from the defendant under the writ of replevin."
¶3 The objections to the other instructions, viz.: Nos. 3, 3 1/2, 4, 5, 6, 7 and 8, even if exceptions had been properly saved at the time they were given, are not well founded, at least in the absence of the evidence, which is not made a part of the record.
¶4 The court refused two instructions offered by the plaintiff, but no exception was taken to the refusal of the court to give them, and this point will not be entertained. Hence, with this view expressed, no objections raised to any of the instructions will be considered except instruction No. 9 above recited, and this one only to the extent useful to convey the reasoning of the court upon the omission of the appellant to properly present the questions involved by the exceptions necessary to entitle him to a saving of the alleged, errors of the lower court. The only exception properly saved is embraced in the order of the court overruling the motion to set...
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...391; Taylor et al. v. Johnson et al., 23 Okla. 50, 99 P. 645; Carter & Bro. v. Missouri M. & L. Co., 6 Okla. 11, 41 P. 356; Berry v. Smith, 2 Okla. 345, 35 P. 576. ¶11 With plaintiff's motion for new trial, and as newly discovered evidence, there was an affidavit of one Daniel Bunnell, to t......